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Lord Redesdale: After that tempting request, I feel I have to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 66:

"(2) An order under this section may make transitional provision in connection with any modification made by the order."

The noble Lord said: Amendment No. 66 is described as a technical amendment, which raises no new issues of policy. It puts beyond any doubt that any order modifying the schedule may also make any necessary transitional provision. For example, an order altering the schedule could affect the categories of goods or technology coming under control or the descriptions of goods or technology falling within particular defined terms. It might be necessary to provide transitional provisions clarifying that export licences issued under control orders drafted with reference to the earlier version of the schedule remained valid. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

7.45 p.m.

Clause 12 [Orders]:

Baroness Miller of Hendon moved Amendment No. 67:

    Page 7, line 10, after "section" insert "1, 2, 3, 4 or"

The noble Baroness said: In moving Amendment No. 67 I shall speak also to Amendment No. 68. Both amendments relate to the parliamentary scrutiny of orders that are made under the Bill. In simple terms—indeed, in the very simplest terms—the amendments require all orders made under the Act to be subject to

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the affirmative resolution procedure rather than the negative procedure that the Government propose for certain of the provisions of the Bill.

As the Bill stands, all the Government are offering to be subject to the affirmative resolution procedure are orders made under Clause 5(2). Members of the Committee will recall that that clause contains the wide power which the Government seek to make orders for purposes not sanctioned by the schedule. In other words, in return for being given power to go beyond what Parliament is specifically sanctioning by the Bill in some unspecified way—as we have already debated in relation to Clause 5—the Government are offering to allow Parliament to have the right to vet such orders by the affirmative procedure. However, the orders which the Government are empowered to make under the Bill are wide ranging. They can have major effects on the defence industry, which accounts for 10 per cent of our industrial output, to say nothing of the effect that they will have on what the Bill calls "objects of cultural interest". In other words, they are orders which can affect our trade in art, where the UK is a leading international market.

The history of export control legislation is that it is of very long duration. As Members of the Committee will recall, the last major Bill on the subject was passed over 60 years ago. By this Bill we are sanctioning rule by secondary rather than primary legislation. It is beyond argument that the negative procedure is a lesser form of scrutiny than the affirmative resolution procedure. Considering the importance to our defence industry, our technological industry and to our art trade, and taking into account that orders made under the Bill could endure for a couple of generations—the last was for a very long time—it is not too much to ask that the legislation that the Secretary of State is putting into place should receive much closer scrutiny than the hit or miss negative procedure will allow for.

The honourable Member for Aberdeen North raised the matter before the Standing Committee in the other place in which he gave a most interesting explanation of the difference between affirmative and negative resolutions. I should like to anticipate the answers that the Minister may wish to give, following the line of the Parliamentary Under-Secretary of State for Trade and Industry in the other place. The Under-Secretary first said that the 1939 Act made no provision for parliamentary scrutiny of secondary legislation. I am not sufficiently versed in legal history to say what was the practice in 1939. I have made reference in my notes to what part of school I was in at that time, but I have decided to let that go. Now, two generations on from the previous Act, secondary legislation always does receive parliamentary scrutiny. The only question is what form such scrutiny should take.

I should like to remind Members of the Committee about three other aspects of the 1939 Act. First, it was not an enabling act to the extent that the present Bill is. Secondly, I am sure that the government of the day and, indeed, Parliament, did not anticipate that it would stay in force for 63 years. We have only to look

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at the title: Import, Export and Customs Powers (Defence) Act. Thirdly, it was part of the legislation intended to meet the world crisis that existed in 1939.

In those dangerous days, when there was a national emergency prevailing, Parliament was naturally prepared to cede almost unlimited powers to the Government. There is no such need for that today. The historical precedent of the 1939 Act has no relevance today. The Under-Secretary also advanced the argument that:

    "Most orders to be made under the Bill for which the negative procedure is provided will be predominantly technical".

I hope that I am mistaken in interpreting that as suggesting that the orders might be too complicated for mere parliamentarians to understand. The more complicated the orders, the greater the need for detailed scrutiny, especially by those Members of the Committee whose experience and expertise makes them well versed in such matters.

The Under-Secretary also said:

    "The most frequent need for amendment is as a result of changes to lists of items subject to control".

Even with the rapid changes in technology that we see these days, I really cannot accept that frequent changes in the orders will be needed. I have every confidence that the parliamentary draftsmen are skilled enough to draft orders sufficiently widely worded to anticipate reasonably foreseeable advances in technology. In any case, apart from the pressure on parliamentary time, the fact that changes will sometimes be needed because of changing circumstances is no reason why they should not be subject to the affirmative vetting procedure. On the contrary, it seems even more reason why they should be.

The Under-Secretary also claimed that it might be necessary to introduce specific controls under Clause 3(2) to deal with emergencies. He said that in such circumstances the Government will be required to act without delay. The Government have already provided themselves with powers to deal with emergency situations under Clause 5(2), which enables them to make time-limited orders, and which we discussed much earlier today. The Under-Secretary contended that positive resolutions were not necessary in respect of the record-keeping requirements. However, I venture to suggest that once they have been settled, they will be more or less permanent.

The Under-Secretary concluded by stating:

    "The consequential loss of the affirmative resolution procedure in no way diminishes parliamentary scrutiny of orders under the Bill".—[Official Report, Commons Standing Committee B, 18/10/01; cols. 139 and 140.]

We fundamentally disagree with that statement as a matter of general principle. There is definitely a difference between affirmative and negative legislation.

The honourable Member for Aberdeen North was persuaded by the Under-Secretary of State to withdraw his amendment. However, as I have indicated, I am not convinced by the Government's arguments, which is why I tabled the amendment

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again. I should like to see whether the noble Lord can provide us with more persuasive arguments than those of his colleague in the other place. I beg to move.

Lord Sainsbury of Turville: The effect of these two amendments is to subject control orders made under Clauses 1, 2, 3 and 4 of the Bill to parliamentary scrutiny by the affirmative, rather than the negative, resolution procedure. That seems appropriate for Section 5(2) but not for Clauses 1, 2, 3 and 4.

Members of the Committee will be aware that the Bill provides for different scrutiny provisions for different kinds of order. That appropriately reflects the distinction between orders that can change the reasons for which export controls can be imposed and orders that set out the details of those controls. Where the fundamental purposes of export control are concerned, the Bill properly provides for the affirmative resolution procedure to apply. It is right that the Government should not be able to change the reasons for which controls may be imposed, or to introduce emergency orders that fall outwith those reasons, without the express consent of Parliament.

The Government believe, however, that scrutiny of orders which simply set out the details of controls, and which must always operate within the reasons set out in the schedule, is best achieved by means of the negative resolution procedure. Such orders will frequently be of a technical nature. That is perfectly understandable to Members of this Chamber, but they may not want to spend a great deal of time talking about them; for example, amendments to orders resulting from changes to lists of items subject to control. Those changes are usually a result of alterations to the international export control regimes upon which many of our export controls are based, such as the missile technology control regime. The Government believe that the negative resolution procedure is best suited for orders of that kind.

The Government recognise, however, that Parliament quite properly has an interest in the controls to be introduced by Clauses 1 to 4 of the Bill. That is why in October we published dummy draft orders which set out the details of new controls which allow Parliament to see how the Government propose to use the powers in the Bill. Additionally, the Government have announced that they will be holding a full public consultation on draft secondary legislation before the new controls are introduced. That will provide a further opportunity for all those with an interest to consider and comment on the new controls that are to be introduced. In that way, I think that we have the proper position on affirmative orders in the Bill. In view of that, I would welcome the noble Baroness withdrawing the amendment.

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